(Comments of the National
Human Rights Commission on the response of the Government of Gujarat
of 12 April 2002, in respect of its Preliminary Comments of 1 April
2002)

Failure to protect rights
to life, liberty, equality and dignity

In its Preliminary Comments
of 1 April 2002 the Commission had observed that the first question
that arises is whether the State has discharged its primary and inescapable
responsibility to protect the rights to life, liberty, equality and
dignity of all of those who constitute it

The violence in the State,
which was initially claimed to have been brought under control in seventy
two hours, persisted in varying degree for over two months, the toll
in death and destruction rising with the passage of time. Despite the
measures reportedly taken by the State Government, which are recounted
in its report of 12 April 2002, that report itself testifies to the
increasing numbers who died or were injured or deprived of their liberty
and compelled to seek shelter in relief camps. That report also testifies
to the assault on the dignity and worth of the human person, particularly
of women and children, through acts of rape and other humiliating crimes
of violence and cruelty. The report further makes clear that many were
deprived of their livelihood and capacity to sustain themselves with
dignity.

The facts, thus, speak for
themselves, even as recounted in the report of the State Government
itself. The Commission has therefore reached the definite conclusion
that the principle of 'res ipsa loquitur' applies in this case and that
there was a comprehensive failure of the State to protect the Constitutional
rights of the people of Gujarat, starting with the tragedy in Godhra
on 27 February 2002 and continuing with the violence that ensued in
the weeks that followed.

The appointment of a Security
Advisor to the Chief Minister, to assist in dealing with the situation,
implicitly confirms that a failure had occurred earlier to bring under
control the persisting violation of the rights to life, liberty, equality
and dignity of the people of the State.

Failure of intelligence

The failure to protect the
life, liberty, equality and dignity of the people of Gujarat stemmed
from a serious failure of intelligence and a failure to take timely
and adequate anticipatory steps to prevent the initial tragedy in Godhra
and the subsequent violence.

The report of the State Government
of 12 April 2002 asserts that the State Intelligence Bureau "had
alerted all Superintendents and Commissioners of Police as early as
February 2, 2002 about the movement of karsevaks from the State by train
to Ayodhya. Besides the State Intelligence Bureau had also intimated
UP State Police authorities on 12th, 21st, 23rd, 25th and 26th February
about the number of karsevaks who had left the State for Ayodhya by
train." However, "specific information about the return journey
of karsevaks by the Sabarmati Express starting from Ayodhya was received
only on 28th February at 0122 hrs i.e., after the incident had taken
place on February 27 morning."

It appears incomprehensible
to the Commission that a matter which had been the subject of repeated
communications between the Gujarat Intelligence Bureau and the UP State
Police as to the out-going travel plans of the karsevaks, should have
been so abysmally lacking in intelligence as to their return journeys.
This is all the more so given the volatile situation that was developing
in Ayodhya at that time and the frequent reports in the press warning
of the dangers of inter-communal violence erupting in Ayodhya and other
sensitive locations in the country. In the view of the Commission, it
was imperative, in such circumstances, for the Gujarat Intelligence
Bureau to have kept in close and continuing touch with their counterparts
in Uttar Pradesh and with the Central Intelligence Bureau. The inability
to establish a two-way flow of intelligence clearly led to tragic consequences.
The Commission must therefore also definitively conclude that there
was a major failure of intelligence and that the response of the State
Government has been unable to rebut this presumption.

Failure to take appropriate
action

The failure of intelligence
was accompanied by a failure to take appropriate anticipatory and subsequent
action to prevent the spread and continuation of violence. The Preliminary
Comments of the Commission had observed, in this connection, that while
some communally-prone districts had succeeded in controlling the violence,
other districts - sometimes less communally prone - had succumbed to
it. The Commission had therefore pointed to "local factors and
players" overwhelming the district officers in certain instances,
but not in others, and had asked the State Government as to who these
players were in the situations that had gone out of control.

Such information had been
sought from the State Government particularly since there were widespread
reports of well-organized persons, armed with mobile telephones and
addresses, singling out certain homes and properties for death and destruction.
The reports had also implied that public servants who had sought to
perform their duties diligently and to deal firmly with those responsible
for the violence had been transferred at short notice to other posts
without consulting the Director-General of Police and, indeed, over
his protests.

The reply of the State Government
of 12 April 2002 does not answer these questions. Instead, it refers
to the "gravity of the communal incident which provoked the disturbances"
and the role of the electronic media. While there can be no doubt whatsoever
about the gravity of the Godhra tragedy, it is the considered view of
the Commission that that itself should have demanded a higher degree
of responsiveness from the State Government to control the likely fall-out,
especially in the wake of the call for the 'Gujarat bandh' and the publicly
announced support of the State Government to that call. Regrettably,
immediate and stringent measures were not adequately taken; the response
of the Government thus proved to be unequal to the challenge, as vividly
illustrated by the numbers who lost their lives, or were brutally injured
or humiliated as the violence spread and continued.

Failure to identify local
factors and players

As to the "local factors
and players", in respect of whom the Commission had sought specific
information, the reply of the State Government is silent, taking instead
the position that this is a "matter covered by the terms of reference
of the Commission of Inquiry appointed by the State Government."
The Commission is constrained to observe that it found this answer evasive
and lacking in transparency, not least because of the numerous eye-witness
and media reports - including allegations specifically made to the Commission
and communicated to the State Government - which identify and name specific
persons as being involved in the carnage, sometimes within the view
of police stations and personnel. The reply makes no effort whatsoever
to rebut the allegations made against such persons, or to indicate the
action taken by the State Government against those specifically named
for participating in the egregious violation of human rights that occurred,
or for inciting the acts of violence that resulted in murder, arson,
rape and the destruction of lives and property.

Pattern of arrests

In this connection, the Commission has made a careful analysis of the
pattern of arrests indicated to it by the State Government in its report.
That report states that a total number of 27,780 arrests had been made,
involving both crimes and as preventive detention. The response does
not, however, make clear how many arrests, preventive or otherwise,
were made in the worst afflicted areas of the State within the first
72 hours of the tragedy in Godhra, nor the community-wise break-up of
those arrested in those areas in the immediate aftermath of Godhra,
though such data would have enabled a proper scrutiny of the charge
of discrimination brought against the State Government in respect of
its conduct in the critical hours immediately after the Godhra tragedy
and the call for the 'bandh'. This lack of transparency seriously undermines
the response. The report states instead, that, in relation to various
offences, 11,167 persons were arrested, of whom 3,269 belonged to the
"minority" community and 7,896 to the "majority."
As regards the 16,615 preventive arrests, it mentions that 13,804 belong
to the "majority" community and 2,811 to the "minority."

The questions that arise,
however, are when and where were the arrests made, who were arrested
and for how long were they kept in custody, and were those who were
specifically named arrested. The Special Representative of the Commission,
Shri Nampoothiri has observed in a report to the Commission dated 24
April 2002 that "almost 90% of those arrested even in heinous offences
like murder, arson, etc., have managed to get bailed out almost as soon
as they were arrested." Reports have also appeared in the media
that those who have been released on bail were given warm public welcomes
by some political leaders. This is in sharp contrast to the assertion
made by the State Government in its report of 12 April 2002 that "bail
applications of all accused persons are being strongly defended and
rejected"

Uneven handling of major
cases

The analysis made by the
Commission of the State Government's reply of 12 April 2002 also illustrates
the uneven manner in which some of the major cases had been handled
until that date. In respect of the Godhra incident, where 59 persons
were killed, 58 persons had been arrested and all were in custody (54
in judicial custody, 4 in police remand). In respect of the Chamanpura
(Gulbarga Society) case, where some 50 persons including a former Member
of Parliament were killed, 18 persons had been arrested (17 were in
judicial custody, 1 was released by the juvenile court). As regards
Naroda Patia, where some 150 persons were reportedly killed, 22 had
been arrested, but the response is silent in respect of whether they
had been released on bail or were in custody. In respect of the Best
Bakery case in Vadodara, where some 8 persons were reportedly killed,
12 accused persons were in judicial custody. However, no details were
given about the status of the 46 persons arrested in the Sadarpura case
of Mehsana District where some 28 persons were reportedly killed.

The Commission had recorded
in its Proceedings of 1 April 2002 that there were numerous allegations
made both in the media and to its team that FIRs in various instances
were being distorted or poorly recorded, and that senior political personalities
were seeking to influence the working of police stations by their presence
within them. The Commission had thus been constrained to observe that
there was a widespread lack of faith in the integrity of the investigating
process and the ability of those conducting investigations. The Commission
had also observed that according to the State Government itself, "in
Ahmedabad, looting was reported in well-to-do localities by relatively
rich people." Yet the State Government had not identified who these
persons were.

The report of the State Government
of 12 April 2002 once again fails to make the necessary identification
of these persons. It also fails to rebut the repeatedly made allegation
that senior political personalities - who have been named - were seeking
to influence the working of police stations by their presence within
them. It states that the Government "fully accepts the view that
there should be transparency and integrity in investigating instances
of death and destruction" and adds that "this is being taken
care of". The Commission's Special Representative, Shri Nampoothiri,
however, has reported to the Commission on 24 April 2002 in a totally
opposite vein. He has stated that, in respect of most of the "sensational
cases," the FIRs registered on behalf of the State by the police
officers concerned, the accused persons are shown as "unknown".
His report adds that "this is the general pattern seen all over
the State. Even when complaints of the aggrieved parties have been recorded,
it has been alleged that the names of the offenders are not included.
In almost all the cases, copies of the FIRs which the complainant is
entitled to, has not been given."

There has been widespread
public outrage, in particular, in respect of atrocities against women,
including acts of rape, in respect of which FIRs were neither promptly
nor accurately recorded, and the victims harassed and intimidated. The
Commission must conclude, therefore, that until the time of Shri Nampoothiri's
24 April 2002 report, the victims of the atrocities were experiencing
great difficulty in having FIRs recorded, in naming those whom they
had identified and in securing copies of their FIRs.

Further - for far too long
- politically-connected persons, named by the victims of the crimes
committed, remained at large, many defying arrest. These are grave matters
indeed that must not be allowed to be forgiven or forgotten. Based on
Shri Nampoothiri's reports the Commission would therefore like to warn
that the danger persists of a large-scale and unconscionable miscarriage
of justice if the effort to investigate and prosecute the crimes that
have been committed is not directed with greater skill and determination,
and marked by a higher sense of integrity and freedom from 'extraneous
political and other influences' than has hitherto been in evidence.

Of particular concern to
the Commission have been the heart-rending instances identified in its
Proceedings of 1 April 2002, in respect of which it had called for investigations
by the CBI: those cases relate to some of the very worst incidents of
murder, arson, rape and other atrocities, including many committed against
women and children whose tragic and inconsolable circumstances have
profoundly shocked and pained the nation.

Pervasive insecurity: Justic
es Kadri & Divecha

In its Preliminary Comments
the Commission had referred to the pervasive sense of insecurity prevailing
in Gujarat at the time of the visit of its team. This was most acute
among the victims of the successive tragedies, but that it extended
to all segments of society, including to two Judges of the High Court
of Gujarat, one sitting (Justice Kadri) and the other retired (Justice
Divecha) who were compelled to leave their homes because of the vitiated
atmosphere.

The Commission considered
the response of the State Government in respect of Justices Kadri and
Divecha. In regard to the former, the response states that, "prior
to 28th, there was already half a section of police guards" posted
outside Justice Kadri's residence in Law Garden. On 28 February 2002,
Justice Kadri shifted to Judges Colony in Vastrapur "of his own
accord." It goes on to state that, from 9 March 2002, a further
police guard was placed at his house "since he desired to shift
back to his original residence." The Commission is compelled to
observe that the response of the State Government fails to acknowledge
an incontrovertible fact: the movements of Justice Kadri from house
to house were compelled on him because of the pervasive insecurity.
They were not "of his own accord" because they were clearly
involuntary. And the conclusion is inescapable that the insecurity was
such that it was not dispelled by the police arrangements reportedly
made for him.

As to the 12 April 2002 response
of the State Government in respect of Justice Divecha, it totally ignores
any mention of the repeated efforts made by him and his associates to
seek appropriate police protection, the repeated visits of mobs to his
home on 27 and 28 February, his forced departure, together with Mrs.
Divecha, from their home at around 12.20 p.m. on 28 February 2002 and
the fire that was set to their apartment and property at around 4 p.m.
on that day. Justice Divecha's letter to the Chairperson of this Commission
dated 23 March 2002 speaks for itself.

The fact that criminal case
no. 121/2002 was subsequently registered, that 7 arrests had been made
and that the matter was under investigation, does not explain the failure
to protect Justice Divecha. The action taken was, sadly, too little
and too late. Nor can the Commission accept the proposition that, "As
the city of Ahmedabad was engulfed by the disturbance, it was not possible
for the City Police to arrange for protection for every society."

The Commission would like
to underline that there were communal reasons for the repeated and specifically
targeted attacks on Justice Divecha's property. The attacks were not
a case of random violence against "every society" in the city,
as the response of the State Government would have the Commission believe.
Indeed, the response betrays a considerable lack of sensitivity in explaining
what occurred. It is for this reason that the Commission must reject
as utterly inadequate the response of the State Government, as contained
in its reply of 12 April 2002, in respect of this matter.

There is a deeper point at
issue here that the Commission wishes to make. If the response of the
State Government to the security needs of two Justices of the High Court
was so hopelessly inadequate, despite the time and the opportunity that
it had to prevent the harm that was done, it must be inferred that the
response to the needs of others, who were far less prominent, was even
worse. Indeed, the facts indicate that the response was often abysmal,
or even non-existent, pointing to gross negligence in certain instances
or, worse still, as was widely believed, to a complicity that was tacit
if not explicit.

The Confidential Report transmitted
to the State Government of Gujarat is now being released by the Commission
.Even while doing so, the Commission urges that Government to come forward
with a clear response, indicating in detail the steps it has taken in
respect of the persons named in that report who allegedly violated human
rights or interfered in the discharge of the responsibilities of the
State to protect such rights. Further, the Commission once again calls
upon the State Government to provide a full account of the incidents
to which the Commission drew its attention in that Confidential Report,
and to indicate the measures it has taken to investigate and redress
the wrongs that were committed.